A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," pursuant to CPLR 2221[e][2].
Andil v. Wakefern Food Corp., NY Slip Op 05582 (2d Dep't November 8, 2023)
Because the dismissal of the contract claims was proper, the motion court also properly dismissed the claims for breach of the alleged implied covenants of good faith and fair dealing.
2 Girls Accys LLC v. Larrea, NY Slip Op 05782 (1st Dep't November 16, 2023)
In order to establish a physician's liability for medical malpractice, a plaintiff must prove that the physician departed from accepted community standards of practice, and that the departure was a proximate cause of the plaintiff's injuries. However, in order to reach the issue of departure from accepted medical practice, it is necessary first to establish the existence of a duty. While physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. The existence and scope of a physician's duty of care is a question of law to be decided by the court.
Abruzzi v. Maller, NY Slip Op 05704 (2d Dep't November 15, 2023)
In deciding a motion for leave to serve an amended complaint, the court may properly apply the relation-back doctrine if the original verified complaint put the defendant on notice of the underlying transactions, pursuant to CPLR 203[f].
Spruill v. City of New York, NY Slip Op 05701 (1st Dep't November 14, 2023)
In this action, plaintiff seeks to foreclose on its lien on defendant's condominium and to recover unpaid common charges. By appearing in the action, litigating the merits of her disputes with plaintiff, and seeking affirmative relief in the form of a motion to compel production of plaintiff's annual reports, defendant conferred personal jurisdiction on the court.
Board of Mgrs. of the Residential Section of Galleria Condominium v. Hong, NY Slip Op 05655 (1st Dep't November 9, 2023)
The complaint seeking to set aside an arbitration award is barred on the basis of res judicata and collateral estoppel. On plaintiff's previous appeal, in which he sought the same relief, the Appellate Division rejected the same argument that he makes in this action, namely, that the award is invalid and must be set aside under CPLR article 75 because the arbitration proceeding was improper and because the arbitrator's findings were unsupported by the record and were arbitrary and capricious. The fact that plaintiff has pleaded different causes of action and included new parties is of no consequence. Although the parties in both actions are not identical, plaintiff, the party against whom preclusion is sought, was a party in the earlier action. In addition, the current claims are based on the same transaction as in the earlier action, and, therefore, are barred, even though they are based upon different theories.
Dowlah v. American Arbitration Assn., NY Slip Op 05658 (1st Dep't November 9, 2023)
In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative. A malpractice claim is viable where the underlying action is settled if the plaintiff alleges that settlement was effectively compelled by the mistakes of counsel.
Alexim Holdings, LLC v. McAuliffe, NY Slip Op 05581 (2d Dep't November 8 2023)
Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff's inability to identify the cause of his fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.
The plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. Cases grounded on circumstantial evidence require a showing of sufficient facts from which the defendant's negligence and the causation of the accident by that negligence can be reasonably inferred. However, where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused the accident, any determination by the trier of fact as to causation would be based upon sheer speculation.
Adzei v. Edward Bldrs., Inc., NY Slip Op 05580 (2d Dep't November 8, 2023)
CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The right to disclosure, although broad, is not unlimited. The statute establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery; attorney's work product, also absolutely immune; and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship. A party asserting that material is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Whether a particular document is protected is necessarily a fact-specific determination, most often requiring in camera review.
Here, the Appellate Division remits the matter to the Supreme Court for an camera review of the documents requested in the subpoena before it determines whether to compel compliance with the subpoena or to grant a protective order.
Bronstein v. Omega Constr. Group, Inc., NY Slip Op 05487 (2d Dep't November 1, 2023)
In order to vacate her default in opposing those branches of the defendants' separate motions which were pursuant to CPLR 3126 to strike the amended complaint, the plaintiff was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition, pursuant to CPLR 5015[a][1]. While the plaintiff demonstrated a reasonable excuse for the default, she failed to demonstrate a potentially meritorious opposition. Instead, the willful and contumacious nature of the plaintiff's conduct can be inferred from her failure, over a period of years, to comply with the defendants' discovery demands and her failure to comply with court orders directing disclosure. Vacatur is denied.
S.A. v. Bucca, NY Slip Op 05485 (2d Dep't November 1, 2023)
